Fryer v. Warne

Injunction. License. Prescription. Watercourse. 1. A pond of surface water on plaintiff’s land, after heavy rains discharged a part of its waters along a certain line over defendant’s land; and, by defendant’s permission, plaintiffs dug a ditch along such line; but it does not appear that such line of discharge, before the digging of the ditch, had any fixed bed or banks, and the water did not usually flow therein. Held, that neither the original nor the artificial channel was a “ watercourse. ” Hoyt & Hudson, 27 Wis., 656, followed. 2. The complaint for an injunction against filling said ditch, not averring that the natural flow of the water, as it existed before the ditch was dug, will be interfered with by such filling, statements to that effect in affidavits filed on a motion to dissolve the injunction, are not to be regarded. 3. Parol licenses by defendant and his grantors to plaintiffs to dig and maintain such ditch, in consequence of which plaintiffs went to a considerable expense in doing so, held revocable at will. French v. Owen, (2 Wis., 250), and Olute v. Carr (20 id., 531), followed. 4. The maintenance of such ditch by plaintiffs, not being adverse (but under license) nor continued for twenty years, conferred no prescriptive right. R. S., ch. 138, secs. 8-10.

APPEAL from tbe Circuit Court for Jefferson County. This is an appeal from an order of the circuit court dissolving an injunction which had been previously granted to restrain the defendant from filling a ditch upon his own land, through which the water flows from the land of the plaintiff Mrs. Fryer. The complaint and the affidavits on which the injunction was allowed and afterwards dissolved, show the existence of the following facts; Mrs. Fryer is the owner of certain land in section 82, town 5, range 15, in the county of Jefferson; and the defendant is the owner of certain land adjoining that of Mrs. Fryer, in section 5, town 4 of the same range, in the county of Walworth. On the land of Mrs. Fryer .there is a depression of the surface; and the basin or hollow formed 'thereby, in times of high water and after considerable rains, is filled with water, which, when it overflows, naturally runs off across the land of the defendant to Whitewater creek. In 1853, a parol agreement between tlie plaintiff Nelson Fryer, wbo tben owned the land in section 32, and one Sikes, who then occupied, and (as it is claimed), owned the land in section 5, was made and executed, whereby the ditch in question was dug upon both tracts of land, which drained the water from the pond formed by the hollow or basin on the land now owned by Mrs. Fryer, across the land now owned by'the defendant, to the creek. This ditch also drained the water from a similar pond on the latter tract. Sikes paid for digging the whole of the ditch, and Fryer boarded the men who did the work at his own expense. In 1859, one Alexander Graham, who, it is claimed, was then the owner of the land in section 5, gave a parol license to Mrs. Fryer, who in the meantime had become the owner of the land in section 32, to clean out and deepen such ditch on his land; and pursuant thereto the plaintiffs did clean out and deepen the same at considerable expense. In 1866, and after the defendant became the owner of the land in section 5, he also gave the plaintiffs license to clean out and deepen the ditch, and they accordingly did so, incurring thereby additional expense. The ditch was dug along and near the line where the water from the pond on Mrs. Fryer's land naturally flows when such pond overflows its banks; and the complaint alleges that such line or channel is a natural water-course. The ditch so drains Mrs. Fryer's land that its value and productiveness is greatly increased thereby. The testimony bearing upon the question as to whether such line or channel is a watercourse, is as follows: The plaintiff Nelson Fryer deposed that “ there was always a natural watercourse near the ditch in controversy, and that when it was wet the water always ran from plaintiffs’ land across the defendant’s, near the line of said ditch, but there never was nor is now any permanent stream of water, because there are no springs to feed the same.” John Peacock says: “ There was an old channel running near where the ditch now is;” and further: “There was a small pond or water-hole on defendant's land at high water, .which this ditch drained also.” ¥m. Mnlks says: “ From the high-water pond on plaintiffs’ land, there was a natural channel across defendant’s land, near where the ditch in controversy is, and said pond, when it was full enough, drained across defendant’s land in said old channel.” And the de-' fendant, by his affidavit, “ denies that there is any natural channel or water-course along or near the line of said ditch,” and avers that “ the said pond-hole on said plaintiffs’ land is naturally without any water-course running therefrom, except when it is filled so full by heavy rains as to overflow its natural banks.” In 1870, the defendant commenced to fill the ditch on his own land, and would have entirely filled the same had he not been restrained therefrom by the injunctional order. The filling of the ditch would greatly injure the land of Mrs. Fryer, but the complaint does not allege that her land would be in any worse ¿"condition after the ditch should be' so filled than it would have been in had such ditch never been dug. The case shows that there was a natural, well defined channel, though not a perpetual stream, and the doctrine as to surface-water does not apply. Bassett v. Salisbury Manufacturing Co., 43 N. H., 569; Gillhan v. Madison Co. R. R. Co., 43 III, 484; Ashley v. Wolcott, 11 Cush., 192; Luther v. Winisimmet Co., 9 id., 171; Buffum v. Harris-, 5 R. I,, 243; Bilis v. Duncan, 21 Barb., 230; Qillett v. Johnson, 30 Conn., 180. The deepening and straightening of the old channel gave the defendant no greater right to stop the flow of the water from plaintiffs’ land than he had before. 2. By encouraging the plaintiffs to lay out money in maintaining the ditch under the parol license, the defendant estopped himself from denying the plaintiffs’ right to have it kept open. Gray v. Bartlett, 20 Pick., 186; Waffle v. N. Y. Central R. R. Co., 58 Barb., 413. 3. The filling up of this channel was no improvement of his own land, but it injured the plaintiffs, and was malicious; and be is responsible therefor. Ghatfield v. Wilson, 28 Vt., 49; Wheatley v. Baugh, 25 Pa. St., 582 ; Swettv. Cutis, Am. Law Rep., January 1872 and notes. 4. The plaintiffs have acquired a prescriptive right to run off the water in this ditch by seventeen years visible, recognized user. 1. The plaintiff’s claim is for interference with the flow of surface water merely, and not of a natural stream. A right to enter upon the defendant’s land to keep the ditch open cannot be conferred by parol. Hewlins v. Shippam, 5 B. & C., 221; Angelí on Watercourses, §§ 169,170;Fitch v. Seymour, 9 Mete., 462; French v. Owen, 2 Wis., 250; Thompson v. Gregory,4 Johns., 81. 2. A parol license to cut and maintain a ditch upon the land of another is revocable at will {Cocker v. Cowper, 1 Crompt. M. & R., 418; Washburn on Easements, 23,24; Selden v. Del. & Hud. Canal, 29 N. Y., 639 ; Drake v. Wells, 11 Allen, 141-144; Foot v. N. H. & N. Co., 23 Conn., 223 ; Bridges' v. Purcell, 1 Dev. & Bat., 492 — 497 ; Trammell v. Trammell, 11 Rich., 471; Foster v. Browning, 4 R. I., 47; Hazleton v. Putnam, 3 Chand., 117; Woodward v. Seely, 11 Ill., 157; Carleion v. Bedington, 1 Foster, 308 ; 1 Wash. R. P. 411) —even after there has been enjoyment under it. Washburn on Easements, (2d ed.), 380, 650; Fentiman v. Smith, 4 East., 107; Mumford v. Whitney, 15 Wend., 380; Cook v. Stearns, 11 Mass., 533; Sampson v. Burnside, 13 N. BL, 264; Wood v. Leadbitier, 13 Mees. & W., 838; 3 Kent. Com., 452, and note A. 3. The affidavit of the defendant positively denies giving any such license, and alleges that the other parties, claimed to have given license, had no title. The injunction was, therefore, properly dissolved.